This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
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Monday, December 12, 2011

Victorian FOI commissioner bill no joke, worth at least a grin

Victoria's proposed freedom of information commissioner scheme is under the hammer in today's Herald Sun dismissed as " a joke" in this editorial and as a "toothless tiger" in an accompanying report by Peter Rolfe who quotes Rick Snell describing the legislation as

"a patchwork job on an
existing dodgy framework legislated in the early 1980s on 1960s
principles"."It's a further step backwards and a further
authorisation of management and top-level executives in the
decision-making process," he said.

Rick Snell is right about what amounts to a bandaid over a slerotric artery. The underlying Victorian FOI act reflects thinking circa 30 years ago about getting the balance right between the private space necessary for good government on the one hand and and public access to government information on the other. Things have moved on apace since then particularly in recent years in Australia and the "dodgy framework" badly needs attention in Victoria as well.

No mention of this bigger reform landscape in Minister McIntosh's Media Release or speech to Parliament (Assembly Hansard 8 December 60-64)-no one else spoke and debate was adjourned until 22 December.

The weaknesses in the commissioner bill cited in the Rolfe article are significant-review by the commissioner will not extend to cabinet documents or documents denied access on national security grounds, or in respect of any decision by a minister on a request for a minister's documents or on a request to an agency any decision by the principal officer-and unjustified. However not mentioned in the Herald Sun is that these and other matters not subject to review such as the adequacy of search for documents and third party objections not acted upon by an agency, can be the subject of a complaint to the commissioner. A complaint is different from a review application- after any investigation the commissioner in these cases only has recommendatory powers-see Complaints below.)

While not a complete zero the case for the carve-outs is weak or in the case of the last mentioned simply not made.

But "joke" and "step backward" for the whole shebang are too strong. The bill is worth a grin at least while muttering "could do better" at the same time. Despite the limited scope of reform and some weaknesses there are positives in what is being proposed.

If passed, the bill's provision come into force no later than 1 December 2012 but the search for a commissioner is still ongoing, and the budget allocation for 2011-2012 for the office is $1 million a small proportion of the four year figure of $7.9 million much trumpeted by the government. FOI applicants in Victoria may have a while to wait before the turn for the better.

The scheme abolishes right to internal review by the agency. The right in future will be to apply to the Freedom of Information Commissioner, an office established by the bill, regarding a decision of an agency refusing to grant or deferring access to a document; a decision of an agency not to waive or reduce an application fee under section 17; a decision to refuse to amend a document containing information concerning personal affairs. All existing rights to seek review by the Victorian Civil and Administrative Tribunal remain, so an aggrieved applicant in these areas has a choice at first instance. (Similar to NSW but not the Commonwealth where Australian Information Commissioner review is mandatory before a matter can be taken to the AAT.) VCAT remains the review option for other matters including where a third party objects to an agency decision to disclose personal or business information and wishes to go further than a complaint to the commissioner.

The commissioner must conduct a review in a timely, efficient and fair manner, with as little formality and technicality as possible.

There are various grounds on which the commissioner may determine not to accept an application for review or dismiss a review at any stage including where the commissioner "considers that a review is not appropriate in the circumstances."

After making preliminary inquiries, the commissioner, with the agreement of the applicant, may refer the matter back to the agency for reconsideration, "if it appears .. reasonably likely that the agency will be able to make a fresh decision in a way that is satisfactory to the applicant and in accordance with law."

The commissioner may facilitate an agreement between the parties in relation to the decision under review.

The bill imposes a 30 day turn around for commissioner reviews which seems highly idealistic, although the limited scope for review will help, and there is no time limit for investigation of a complaint. But experience in other jurisdictions is instructive. This for example from the Queensland Information Commissioner's latest annual report:

"the number of median days to finalise a review was 77 days; the service target was 90 days." The Australian Information Commissioner hasn't reported in that detail but between 1 November 2010 and 30 June 2011 received 176 applications for review that raised over 250 review issues. Twenty-nine of the applications were finalised by 30 June 2011.

The Victorian commissioner's decision "has the same effect as a decision of the agency" so is determinative of the status of the documents requested unless the agency or applicant appeals to VCAT. The bill provides that if the FOI commissioner does not make a decision within the required time, the commissioner will be taken to have made a decision refusing to grant access to the document. Once the commissioner makes a decision or deemed decision an applicant or an agency will have 60 days to appeal the decision to VCAT. Even if it does not intend to appeal a commissioner decision requiring an agency to release a document does not take effect until 60 days after notice of the decision is given-that's not good.

The open ended appeal right for an agency is also a potential concern because an agency could drag things out by simply lodging an appeal. The commonwealth scheme in similar fashion provides for an application to the AAT where the agency or applicant contends the commissioner's decision is wrong. My five cents worth would favour a general right of tribunal review for an applicant still aggrieved after a commissioner decision but limited right for an agency. Queensland and Western Australia limit appeal rights from an information commissioner decision by any party to a question of law.)

In VCAT the Tribunal, on its
own motion or on the application of the Freedom of Information
Commissioner, may call on the commissioner to assist the Tribunal in
respect of a review. (In the Commonwealth scheme the commissioner has no
role in AAT proceedings.)

Complaints

Separately the commissioner has a complaints function.

"A complaint may be made to the commissioner about any of the following-no specific mention of a decision taken by a principal officer of an agency(a) an action taken or failed to be taken by an agency in the performance or purported performance of the agency's functions and obligations under this Act, including a decision by an agency that a document does not exist or cannot be located;(b) a delay by a Minister in dealing with a request;(c) an action taken or failed to be taken by a Minister in making a decision under section 24 deferring access to a document;(d) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 33;(e) an action taken or failed to be taken by a Minister in making a decision to disclose a document that is claimed to be exempt under section 34."

If a complaint cannot be resolved informally, the Freedom of Information Commissioner must use his or her best endeavours to conciliate the complaint. If conciliation fails or is unlikely to succeed the commissioner may investigate and report findings including recommendations that the commissioner considers appropriate. The recommendations may include suggestions for improvements to the policies, procedures and systems of the agency in relation to compliance with this Act. But of course recommendations are simply that- the agency or minister concerned may or may not accept and act upon them.

The commissioner has an annual report function for matters specified including agency statistics.

Protection for complainants

No civil action lies against a person who makes a complaint to the Freedom of Information Commissioner under this Act for anything done in good faith by that person in making that complaint." I don't recall anything similar in other Australian FOI type legislation-but someone out there may know better.

Professional standards

The bill provides that the responsible minister may set professional standards that may
be subject to regulations made under the act in which case principal
officers of agencies must ensure that any officer or employee complies
with the professional standards. Further, complaints can be made to the
FOI commissioner in relation to any breaches of the standards by
agencies-all this is potentially a good thing.

New parliamentary committee

As is the establishment of an oversight committee established through amendment to the Parliamentary Committees Act.

(1) The functions of the Accountability and Oversight Committee are—(a) to monitor and review the performance of the functions and exercise of the powers of the Freedom of Information Commissioner; and (b) to consider and investigate complaints concerning the Freedom of Information Commissioner and the operation of the office of the Freedom of Information Commissioner; and (c) to report to Parliament on any matter relating to—(i) the performance of the functions and the exercise of the powers of the Freedom of Information Commissioner; and(ii) any complaint concerning the Freedom of Information Commissioner and the operation of the office of the Freedom of Information Commissioner— that requires the attention of Parliament; and(d) to examine the annual report of the Freedom of Information Commissioner and any other reports by the Commissioner and report to Parliament on any matters it thinks fit concerning those reports; and(e) to inquire into matters concerning freedom of information referred to it by the Parliament and to report to Parliament on those matters.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.